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DA asks judge to make decision
Keith says court should say whether review of Marker case is released to public
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Published: July 23, 2007
District Attorney Tom Keith has read a city draft report on a controversial 1995 beating case over the weekend and said he wants a judge to make a decision as to whether the entire report should be released to the public.
Winston-Salem City Manager Lee Garrity said in early June that the city would let the public see a report on how police investigated the near-fatal beating of Jill Marker in the Silk Plant Forest store.
Keith told the city he wanted to read the report first to determine whether the public release of anything in it would violate the rights of Kalvin Michael Smith, the man convicted of beating Marker.
The city attorney's office decided to give Keith a copy and not take action to make the report public until it hears from Keith, said Angela Carmon, an assistant city attorney. The city also said it would consider suggested changes to the report if Keith made any.
Keith said yesterday that he read the city report during the weekend and saw nothing that he wants withheld from the public. But he said he wants attorneys for Smith and a judge to make the decision.
Keith's reasons for the request drew criticism from observers.
"I think it is more than a little silly to have Tom Keith position himself as some champion of civil liberties for the accused," said the Rev. Carlton Eversley, the spokesman for the Ministers Conference of Winston-Salem and Vicinity. "This is the same person who neglected to review the evidence around Darryl Hunt for almost 10 years."
Hunt was wrongfully convicted in the killing in 1984 of newspaper copy editor Deborah Sykes, and served about 18 years in prison before the real killer was found through DNA evidence.
Keith was elected after Hunt was convicted, but he fought Hunt's appeals for years before conceding in late 2003 - when DNA identified Williard Brown in the case - that Hunt was not the killer.
Keith has the option to file a motion for a protective order asking that portions of the report on the investigation be released to Smith and his attorneys, but not the public.
Keith said he simply wants to make sure that nothing prejudicial to Smith would be made public and taint potential jurors in case Smith gets a new trial.
"In case I have to have a new trial ... I think I have a duty as district attorney, and not representing one side or the other, to go to a judge and say, 'Judge, you make this determination,'" Keith said. "I'm just a very cautious prosecutor. That's my job. Especially in a post-Nifong world, I'm probably being hyper-vigilant."
Keith was referring to Mike Nifong, the former district attorney in Durham County, who was disbarred after he was found to have violated more than 24 rules of professional conduct in his handling of a criminal case against Duke University lacrosse players.
City Manager Garrity and Police Chief Pat Norris initiated the administrative review of how police handled the Marker case in March. Garrity said that it was done because of continuing questions about the case.
Smith is serving a minimum sentence of 22 years and 10 months in prison. He has maintained his innocence, and an attorney for Smith says he plans to ask a judge for a new trial. The Duke Law School Innocence Project says it has found new evidence that can help prove that Smith is innocent.
Keith did not inherit the Marker case. He was the elected district attorney in Forsyth County when Marker was beaten on Dec. 9, 1995, and his office prosecuted Smith in 1997.
Keith said in late June that he was not very familiar with the Marker beating.
"I haven't read any of the transcript," he said last month. "You have to read thousands of pages and read all this stuff, and I haven't read any of it."
Jim Coleman, a faculty adviser to the Duke Innocence Project, said that Keith told him the same thing.
"I think his primary concern is to protect his office," Coleman said. "He doesn't know anything about the case - at least according to him - so how is he going to identify anything that would violate Kalvin Smith's rights?"
Coleman said he questioned the appropriateness of the statute under which the city gave Keith the draft and has said that Keith has spent the last two years saying he was willing to help the innocence project, but has done little.
Keith disputes that, and says he has been willing to help.
"The only justification for doing (this) is to give him a chance to cover his tail, in the event there is anything in the report that might blow back on him or his assistants," Coleman said.
Marker was a manager at the Silk Plant Forest store off Silas Creek Parkway where she was beaten on the head 20 times. She suffered skull fractures, permanent brain damage and later went blind. She was pregnant at the time, and gave birth while in a coma.
In addition to the Duke University investigation, a series of stories in the Winston-Salem Journal in 2004 raised questions about the police investigation and prosecution of the case.
The stories examined the methods that police used to interrogate Smith and other witnesses, and quoted medical experts who said that Marker's brain injuries were so severe that her memory of the attack would not have been reliable. The stories also showed how police stopped investigating a suspect when he moved away and focused on Smith after a jilted girlfriend presented him as a suspect.
Coleman has said that an attorney for Smith is planning to file a motion asking for a new trial. The motion would be based on information gathered by law-school students since 2003 in the innocence project's review of the case.
The project has found, among other things, that witnesses who testified against Smith now say they lied, Coleman said. The innocence project also was given a copy of a videotape that was apparently never turned over or shown to Smith's defense attorney.
In the tape, Marker was unable to identify Smith as her attacker in a photo lineup but identified another suspect as having been in her store, Coleman said.
The city's review contains some information that involves city personnel and is not public.
But Garrity said in early June that the city would probably ask a judge for permission to release the full report to the public. The report, if released, will show that police made procedural mistakes in their investigation, Garrity said.
Carmon, an assistant city attorney, said that the decision to grant Keith's request for a copy of the report was allowed by state law.
"Let's make it clear. He's not re-writing the report. He's just trying to ascertain whether or not there's anything in the report that might jeopardize the defendant's rights," Carmon said in an interview. "He cannot change the wording."
Jet Hollander was a member of the city's Deborah Sykes Administrative Review Committee, which looked at police actions and mistakes during the investigations of Hunt.
He said that the Silk Plant Forest report should immediately go before a judge.
"Once again, a Winston-Salem man is sitting in prison year after year while credible questions about his guilt exist. If the city in fact allowed the district attorney to pass judgment on the draft of its review or to delay the review's release, that would be stunning and deeply troubling," he said. "Particularly troubling is that the city may have allowed this after the district attorney provided zero cooperation to our committee in the 18 months we reviewed the Deborah Sykes matter."
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